Prosser v Prosser

This case started out as an unfortunate dispute between Mr. Malcolm Bernard Prosser (whom I shall call"Mr. Malcolm Prosser" or "the claimant") and Mr. Richard Kenneth John Prosser (whom I shall call "Mr. Prosser" or "the defendant"). Mr. Prosser is now aged 81 but will shortly be 82. The dispute has now developed into something rather more serious in that Mr. Prosser is accused of a contempt of court in failing to comply with a Consent Order that he agreed to on 10th March 2010. This is Mr. Malcolm Prosser's application to commit his brother, Mr. Prosser, to prison for that contempt of court.

In the briefest of outline what is alleged is that an Order dated 10th March 2010 (which I shall call the "10th

It is common ground that Mr. Prosser did not comply with that Order. Instead, when the property was sold on

In due course I shall have to decide the factual issues relating to the alleged contempt but there are also legalissues that have been raised by Mr. David McIlroy, counsel for Mr. Prosser, which he contends mean that the application to commit Mr. Prosser cannot succeed. The main issues that arise, as I perceive them to be can be summarised as follows:

I shall start by setting out the factual chronology as it has appeared from the evolving evidence from thepapers that have been placed before me. Unfortunately, the chronology cannot be shortly stated. That is partly because matters have developed speedily during the hearings that I have conducted but also because Mr. Prosser's conduct in response to the allegation of contempt is important to some of the issues that I have already adumbrated.

Mr. Prosser was born on 29th April 1929. Prosser Brothers, Waltham Cross Ltd. ("the Company") wasincorporated on 15th November 1963. Eventually, after a third brother, Barry Prosser, died in 1992, Mr. Prosser held 70% of the shares and Mr. Malcolm Prosser, his brother, held 30% of the shares in the Company. Mr. Malcolm Prosser was, so to speak, a sleeping partner or sleeping shareholder. The Company traded as a freight haulage company.

By 2003 the business was dormant but owned a leasehold haulage yard. In early 2003 the Company sold thehaulage yard for some £450,000 even though the claimant had offered £500,000 for it. Following the sale the 2004 accounts of the Company showed net assets of some £431,000. In January 2005, however, Mr. Prosser informed Mr. Malcolm Prosser that the Company had no assets and in 2006 the Company went into compulsory liquidation with debts of £200,000. In July 2009 - relevantly for the chronology but not for the business of Mr. Prosser and his brother - Mr. Prosser's partner, Ms. Joy Hewetson, died. On 28th February 2010 Mr. Malcolm Prosser obtained a Deed of Assignment from the liquidator of the Company, a Mr. Duncan Peet, of the Company's causes of action against Mr. Prosser for breaches of his fiduciary duties as a director.

On 4th March 2010 Mr. Malcolm Prosser issued his claim form in these proceedings and also an applicationfor an inter partes freezing order returnable on 10th March 2010. The claim form alleges fraud and breach of fiduciary duty in Mr. Prosser's conduct of the affairs of the Company. On 10th March 2010 the freezing order was granted by consent by Mr. John Jarvis QC sitting as a Deputy Judge of the High Court. It was ordered that Mr. Prosser should instruct his solicitors acting on the sale of his property that the proceeds were to be paid to a nominated bank account held by the claimant's solicitors, Messrs. Maddersons. Both sides were represented by solicitors: Mr. Prosser by Mr. Tom Edwards of Veale WasbroughVizards and counsel James Dawson, but Mr. Prosser was not personally present at court. Mr. Prosser accepts, however, that he was on

In pertinent part the Consent Order provided as follows:

'The property' shall mean 1 St. Mary's Close, Welwyn Village, Herts, AL6 9RL

'Proceeds of Sale' shall mean any moneys paid by purchaser of the Property for the Propertybut subject to the following deductions:

Sanders moneys shall mean any moneys owing to James Albert Sanders and KathleenElizabeth Sanders which are secured against the Property by registered charge dated 6th March 2002 ...

The nominated bank account shall mean a UK bank account of whom the account holder isMaddersons, the claimant's solicitors, and which is nominated by Maddersons to hold the proceeds of sale.

Until judgment on the application notice or further order in the meanwhile the defendant shallnot enter into any arrangement or agreement whereby further loans are secured against the property and/or further charges or mortgages are granted over the property.

If the Property is sold, the defendant shall instruct his solicitors acting on the sale that theproceeds of sale are to be remitted to the nominated bank account forthwith.

The defendant shall be entitled to draw the following moneys from the nominated bankaccounts:

reasonable living expenses including, if appropriate, the provision of nursing home serviceswhich shall be agreed in advance between the parties or, in the absence of agreement, either party shall have liberty to apply to the court;

reasonable living expenses incurred in relation to the defending of these proceedings.

There followed a period of negotiation between the solicitors on both sides as to what reasonable livingexpenses Mr. Prosser should be allowed under paragraph 7.1 of the Order that I have just read out.

On 15th March 2010 Mr. Prosser met with Mr. Tom Edwards of Veale Wasborough Vizards now ofWinckworth Sherwood (whom I shall call "Mr. Edwards") who explained the Consent Order to him as Mr. Prosser accepted at paragraph 12 of his affidavit of 20th August 2010. An unredacted copy of Mr. Edwards' note of his meeting with Mr. Prosser was produced yesterday after some argument as to whether parts of it were properly to be redacted or not. The note is important and I shall read out part of it as follows. It records that Mr. Edwards had met not only with Mr. Prosser but also with Mr. Ted Barham (whom I shall call "Mr.

At the end of a lengthy note, two pages later, it is recorded as follows:

On 16th March 2010 the defendant acted in compliance with paragraph 8 of the order by disclosing hisassets. Mr. Edwards wrote to Maddersons saying that he had been advised that Mr. Prosser's assets and liabilities were as follows:

His property

approximately £4,000 in the bank - Barclays Bank, Welwyn

Bentley motor vehicle approximately £7,500

Moneys due to Mr. and Mrs. Sanders

Barclays Bank loan approximately £13,000 outstanding."

Also on 16th March 2010 Mr. Edwards telephoned a Mr. Graham Tooze ("Mr. Tooze") of Ewart Price whowas acting for Mr. Prosser on the intended sale of his property. Mr. Edwards's file note records as follows:

Also on 16th March 2010 Mr. Edwards e-mailed Mr. Tooze at 10:04 as follows:

On 19th March 2010 the 10th March Order was stamped and entered by the court. It had been drawn up as aConsent Order without a penal notice endorsed upon it.

On 25th March 2010 Mr. Prosser swore an affidavit of his assets in compliance with the 10th March Orderdetailing the assets in a very similar fashion to that contained in the letter which I have already quoted. Mr. Prosser says at paragraph 11 of his first statement on 22nd July 2010 that on 5th April 2010 he was telephoned by Mr. Tooze who told him that Ewart Price had received a form of discharge from Mr. and Mrs. Sanders' accountant and that "I could now safely go ahead and sell the property".

On 7th April 2010 the particulars of claim were served. The claim was brought by Mr. Malcolm Prosser asassignee of the Company's claims from the Liquidator. The main allegations made were that Mr. Prosser dissipated the assets of some £430,000 belonging to the Company and that he sold the leasehold property of the Company (the haulage yard) at an undervalue losing the Company some £70,000. In round terms, therefore, the claim amounts to something in the region of half a million pounds without interest and costs. It appears from the claim form that the claim was assigned to Mr. Malcolm Prosser for the sum of £5,000 plus 30% of net realisations. So Mr. Prosser himself will potentially, but perhaps only in theory, obtain some benefit as a 70% shareholder from that 30% of the proceeds that would go back to the Liquidator if the claim were successful after costs and expenses of the liquidation had, of course, been paid.

On 9th April 2010 Mr. Prosser exchanged contracts for the sale of the property. The sale was dealt with forMr. Prosser, as I have said, by Mr. Tooze of Ewart Price.

On 13th April 2010 Mr. Malcolm Prosser's solicitors, Maddersons, wrote to Veale Wasbrough Vizards askingabout the progress of the sale of the property as they had understood that exchange and completion was imminent and indicating that they wanted a completion statement showing the moneys that were to be transferred to their client account in accordance with the 10th March Order. On 14th April 2010 Maddersons received the 10th March Order from the court.

On Friday 16th April 2010, according to Mr. Prosser's evidence to me on 20th September 2010 in relation tosomething that he said for the first time in evidence on that occasion, Mr. Prosser said that he was called by a Mrs. Fitzgerald of Ewart Price who told her she would be sending him the cheque on the Monday. It is perhaps useful to read out precisely the evidence that Mr. Prosser gave on that occasion. Mr. Prosser said this in the course of cross-examination:

The phone records that have now been produced to the court would seem to indicate that Ewart Price in factcalled Mr. Prosser on Thursday, 15th April 2010 rather than Friday, 16th April 2010 although the date may not be particularly relevant. It is worth noting at this point in the chronology that between the 17th and 21st April 2010 Mr. Prosser and Mr. Barham (to whom the Haulage Yard and business of the company appears to have been sold) seemed to have spoken on the telephone on several occasions. The relevance of this will appear in due course. Mr. Prosser also said in evidence that on Friday 16th April he called the land line of a Mr. I. Khan (whom he knew as Karney) to ask him how he should invest the £475,000 he was about to receive. Mr. Prosser said that he obtained that land line number from a visiting card that he had been given by Mr. Khan in 1988, some 22 years before. Mr. Prosser told me on the 25th November 2010 when he gave evidence on that occasion that he recalled that the number was an 01 407 number which is or was a number in the West Ham area of London. He says that he converted that number from that shown on the visiting card to the more modern dialling regime making it 0208 407 followed by the remaining digits which he has forgotten. Mr. Khan, apparently, according to Mr. Prosser's evidence, suggested investing the money in Hong Kong to obtain a return of 8% per annum. I believe that he also said that the investment was to be for a 12month period. Mr. Khan allegedly gave Mr. Prosser his mobile telephone number on that occasion. Mr. Prosser, in the course of his various pieces of evidence, first said that he had called Mr. Khan from his land line number at the property. Then, in evidence later, he said that he called him from his car telephone in the Bentley, to which I have already referred. More recently, he suggested or rather inferred that he might have used Ms. Hewitson's (his now deceased partner) old mobile phone which he had discovered with £17 credit on it when he was packing up his house to move. It is now common ground, however, from all the phone records that have been obtained and analysed, that no call was made by Mr. Prosser on any of those lines including Mr. Prosser's ordinary mobile line - to any such number in the relevant period.

That Friday, the 16th April 2010, as I have already indicated, Mr. Prosser was packing up his house inreadiness for completion of the sale on Monday, 19th April 2010. He intended to move to a rented (sheltered, I believe) flat, at Flat 1, 8 Wendover Lodge, Church Street, Welwyn, Herts, AL6 9RL. He told me that he had many things to do that day including selling some garden tools and packing up Ms. Hewitson's old phones in a bag to give to a friend. Mr. Prosser's evidence was that on Saturday, 17th April 2010 Mr. Khan sent him a package of papers by courier in respect of the intended investment in Hong Kong. On Sunday 18th April 2010 Mr. Prosser's evidence was that the visiting card showing Mr. Khan's London telephone number was stolen together with some £500 in cash with which it was wrapped up, again in the course of his preparation for his moving house the following day. Accordingly, Mr. Prosser cannot now say precisely what Mr. Khan's land line number was that he says he called on 16th April 2010. There is evidence of the theft that Mr. Prosser alleges from a third party witness, a friend of Mr. Prosser, who did not attend for crossexamination who is called Mr. Nigel Pine-Gilbert.

On Monday 19th April 2010 Mr. Edwards telephoned to Mr. Barham who had introduced Mr. Prosser tohim. He asked him (that is Mr. Barham) for some information that he was having difficulty obtaining from Mr. Prosser himself. Mr. Barham told Mr. Edwards, as Mr. Edwards' file note records, that he thought that the sale of the property was imminent. The same file note then records that Mr. Edwards called Mr. Prosser and it says:

This is a reference to the ongoing negotiations between Maddersons and Veale Wasbrough Vizards for theamount that Mr. Prosser should be allowed by way of reasonable living expenses under the 10th March Order. Mr. Edwards thought that Maddersons wanted the money from the property in their client account rather than the money being locked up in bricks and mortar and that they would be more likely to agree a higher figure for living expenses whilst the property remained unsold.

In evidence on 31st March 2011 both Mr. Prosser himself and Mr. Edwards accepted that Mr. Prosser hadlied to Mr. Edwards when he told him that he had not yet exchanged contracts in this conversation on 19th April 2010. Also on 19th April 2010 the completion of the sale of the property did in fact take place to a Mr. and Mrs. Beattie for the price of £475,000. The net proceeds of that sale, amounting to some £450,000, were transferred by Ewart Price into Mr. Prosser's bank account at Barclays Bank. Also on 19th April 2010 Mr. Prosser says that he entered into a deed with Mr. Khan in respect of the supposed investment in Hong Kong. In fact the deed was a deed of loan. The deed purports on its face to be a deed of loan, to lend Mr. Khan the £450,000 for 12 months at a rate of 1.25% per month.

The deed is important and provides as follows:

It appears from Mr. Prosser's evidence that he did not meet Mr. Khan at any stage over the weekend of the16th to 19th April 2010. Mr. Prosser, according to his evidence, had not met Mr. Khan for some 22 years since they had known one another when they were both involved with Tottenham Hotspur Football Club. Efforts were made by Mr. Edwards's brother, who is a taxi driver, to trace Mr. S. Wilson, the witness, at 19 Gordon Road, but the Spanish lady at that property denied all knowledge of him. It appears from the researches made by Mr. Edwards that there is no Barker Road in London E13 so that the address given for Mr. Khan on the Deed which I have read out seems to be entirely fictitious.

On Tuesday 20th April 2010, the 10th March Order was served on the defendant's solicitors without a penalnotice being endorsed on the front. On Wednesday, 21st April 2010 Mr. Prosser attended at Barclays Bank to transfer £150,000 to each of three accounts in Hong Kong, thereby transferring the entirety of the £450,000

In evidence on 20th September 2010 Mr. Prosser said that he had known the names of those three payeesfrom a piece of paper that he had written them on when he had been told who the moneys were to be paid to by Mr. Khan. On that occasion he thought that he still had the piece of paper on which he had written the names at home but when he later returned to give evidence he was unable to produce any such document. Also on Wednesday, 21st April 2010 Veale Wasbrough Vizards wrote again to Maddersons as follows. They wrote again to Maddersons in relation to the negotiations concerning the reasonable living expenses as follows:

Mr. Prosser had obviously not informed Mr. Edwards that the property had been sold even by this stage onthe 21st April 2010. Nor had he told Mr. Edwards, as it appears, that the proceeds of sale had been removed to Hong Kong.

On 30th April 2010 Mr. Edwards wrote to Mr. Prosser a letter which Mr. Prosser admits receiving sayingthat he had agreed with Maddersons that the sale proceeds would go into Madderson's account and would be safe, and dealing with the expenses allowance. It appears that Mr. Prosser did not telephone his solicitor, Mr. Edwards, to tell him that the property had been sold and that the proceeds had been placed overseas but did nothing on receipt of this letter one week after the money had gone abroad.

From 7th May 2010 Mr. Prosser's mobile phone records show that he started making calls to a mobiletelephone number at 07674 640923 which he maintains to be the mobile number given to him for Mr. Khan. There is no evidence of any calls being made by Mr. Prosser to that number before 7th May 2010 but he did make several calls thereafter. According to his evidence he found the number unobtainable or simply receiving messages. Since this date Mr. Prosser has not heard, on his evidence, from Mr. Khan save to be told when he telephoned that number that he was sick and had gone to India.

On 18th May 2010 Mr. Edwards wrote to Mr. Tooze saying he had been having trouble getting instructionsbut that he had just spoken to Mr. Prosser who did not sound very well and asking whether the property had been sold and, if so, the whereabouts of the sale proceeds. He also asked whether he had a current address for Mr. Prosser. Mr. Edwards' evidence as to his conversation with Mr. Prosser was that he suspected something was not right and that, as he put it, his "antennae were up". That was his explanation for why he wrote to Maddersons asking about the sale. It is said by Mr. Guy Tritton, counsel for Mr. Malcolm Prosser, that Mr. Prosser was deliberately confusing his solicitor knowing that he had violated the terms of the 10th March Order.

In cross-examination on 20th September 2010 Mr. Prosser said this:

On 19th May 2010 Maddersons phoned Mr. Edwards to say that they had obtained Office copy entries andthat the property had been sold on 19th April 2010. On 20th May 2010 Mr. Edwards wrote to Maddersons as follows:

On 21st May 2010 Mr. Edwards spoke to Mr. Prosser on the telephone. Mr. Edwards told him that he hadstirred up a hornet's nest and that he was just told the other day that the property had been sold. Mr. Edwards asked him if the money was still with the conveyancing solicitor and Mr. Prosser replied that it was not. Mr. Edwards then asked him for details and Mr. Prosser said he had woken him up and could Mr. Edwards give him 15 minutes to pull himself together and he would call back.

When he called back Mr. Edwards made another file note of the conversation as follows:

On 21st May 2010 the order of 10th March 2010 was served on Mr. Prosser endorsed with a penal notice inaccordance with Order 45 rule 7 as recorded in the file note which I have already read out.

On 2nd June 2010 the claimant issued an application to commit the defendant to prison. The statement insupport of the application to commit has been prepared by Maxine Madderson of Maddersons. It says that the committal is sought because:

This statement was inaccurate in that the 10th March order had not required the defendant to pay theproceeds into the nominated bank account but had ordered Mr. Prosser to instruct his solicitors that the proceeds should be paid into the nominated bank account.

On 4th June 2010 the application to commit was served personally on Mr. Prosser. On 9th June 2010 Mr.Edwards met with Mr. Prosser. It was on that occasion that Mr. Prosser showed him the Deed entered into with Mr. Khan which I have already recited and the three bank transfers to which I have already referred. It was also on this occasion that Mr. Prosser told Mr. Edwards about Mr. Khan for the first time. Mr. Edwards' first affidavit had said that Mr. Prosser was shocked when Mr. Edwards told him that the Deed did not record an investment but a loan. When, however, Mr. Edwards was cross-examined on this point he explained that Mr. Prosser was of the "old school" and was not, as he put it "dramatically shocked". He also accepted that Mr. Prosser "could be an actor".

On 10th June 2010 Mr. Prosser filed his defence in these proceedings pleading, perhaps most notably, that"the defendant cannot now recall the precise way in which the Company's assets were dissipated". On 21st June 2010 Maddersons asked Mr. Edwards why Mr. Prosser had breached the freezing injunction. Mr. Edwards made no response despite the chasing enquiry on 5th July 2010 and said in evidence that he did not feel obliged in effect to dance to the tune of the claimant's solicitors. On 22nd June 2010 Master Moncaster adjourned the committal application to the judge.

On 22nd July 2010 Mr. Prosser's draft witness statement came in for the first time dealing with what I maycall the "Khan story". I will not recite the entirety of Mr. Prosser's first draft witness statement but will seek to summarise it and recite only the most pertinent parts. Mr. Prosser said that he was in ill health and described his position in that regard saying this:

He then deals with the arrangements for his sale of his property and the loan from Mr. and Mrs. Sanders andcontinues as follows at paragraph 10:

On or about 5th April 2010 I was contacted by my conveyancing solicitors and informed thatthey had received the form of discharge from Mr. and Mrs. Sanders' accountant Montpelier and that I could now safely go ahead and sell the property.

I wrongly assumed that this meant that I could sell the property without the effect of thefreezing injunction and in this respect matters had been sorted out.

I exchanged contracts for the sale of the property on 9th April 2010 and completion tookplace on 19th April 2010.

Following completion I was contacted by Mr. Tooze's assistant, a Mrs. Fitzgerald, whoconfirmed the sale and that they were in a position to forward the proceeds of sale to me.

I asked whether or not it was possible for her to make a payment of £5,970 to Mid-HertsExecutive Relocation in respect of six months' rent in respect of the new premises where I am now living. She confirmed that this was acceptable.

Following receipt of the proceeds I was in contact with a friend of mine, a Mr. Khan, who isan Indian gentleman whom I have known since 1985 when he was introduced to me at Tottenham Hotspurs when I was in all but name a director.

Mr. Khan advised me to invest the money in Hong Kong where he said I would get the bestrate of interest, 8%.

Mr. Khan arranged for the various papers to be forwarded to me which I completed and forthe investment to be made.

My instructing solicitor has asked me whether or not I can make arrangements for thosemoneys to be returned and I assume that I can. I have telephoned Mr. Khan almost on a daily basis but he has not responded. My solicitors have also telephoned Mr. Khan asking him to call back, but he has not yet returned their calls either.

My financial position at present is that as previous, apart from the fact that the credit in myaccount with Barclays at the moment is approximately £3,000. Again, this must be offset a loan from Barclays."

Mr. Prosser's evidence now is that he does not think that he will be able to get the money back from HongKong because he has not been able to trace Mr. Khan despite attempts by both him and his solicitor to do so.

Mr. Edwards also made a witness statement exhibiting the Deed and the transfers and repeated the story thathe had been told by Mr. Prosser.

On 23rd July 2010 Warren J adjourned the committal application for the cross-examination of Mr. Prosser.On 20th August 2010 Mr. Prosser served further evidence. Again, I do not think that I need set out the evidence in very much detail. It largely repeated the points that had been made in the first draft statement but on this occasion it was a sworn affidavit. In addition, in this affidavit Mr. Prosser dealt with the alleged theft of the £500 and the business card of Mr. Khan and with obtaining the mobile telephone number of Mr. Khan and with his surprise at being told that the money that he had sent to Hong Kong had not been an investment at 8% as he had thought. He concluded by saying at paragraph 41:

On 20th September 2010 the application to commit was brought on before me. Mr. Prosser gave evidence formost of the day. I ordered that the defendant produce documents that had been referred to in the course of his evidence, in particular, certain telephone records and "the documents referred to in the defendant's oral testimony which were sent by Mr. Khan in or around 19th April 2010 to the defendant setting out the details of the bank accounts into which the defendant was to pay £450,000." At the end of the hearing I said this:

On 27th September 2010 Maddersons wrote to Mr. Edwards' new firm which was by this time WinckworthSherwood LLP asking for disclosure of Mr. Prosser's bank accounts saying that they were very keen to be involved in the investigations that were being undertaken by the defendant and that it was their view that if both parties collaborated then they would be more likely to retrieve the funds. In addition they told Mr. Edwards that in order to assist with his investigation Mr. Steven Prosser, the son of Mr. Malcolm Prosser, had asked them to pass on information about how to report fraud in Hertfordshire.

On 28th September 2010 Mr. Edwards replied to Maddersons saying that they would "tomorrow arrange forletters to be sent to the banks and the telephone companies". On 1st October 2010 Mr. Edwards wrote again saying:

On the same date Mr. Edwards said to Maddersons in a further letter that he was just about to write to thevarious banks and the police:

On 6th October 2010 Maddersons responded confirming the listing for 24th and 25th November 2010 andagain strongly suggesting collaboration. In answer to the request about notifying the police they said:

They then referred to some statements that I had made in the course of the hearing and asked forconfirmation that enquiry agents had been formally instructed, whether they had completed the investigation, that the fraud had been formally reported to the police, that letters had been sent to the three banks, the results of the investigations and crime reference numbers.

On 15th October 2010 Mr. Prosser's enquiry agents eventually reported. Mr. Edwards' file note of hisconversation with "Chris from Phoenix" records as follows:

On 19th October 2010 Maddersons chased for a response to their letter of 6th October. On 26th Octoberfurther results were obtained from the enquiry agents recorded in a file note prepared by Mr. Edwards saying:

On 12th November 2010 Mr. Edwards wrote to Maddersons with a certain amount of information concernedwith mobile phone records and concluding:

On 18th November 2010 Mr. Prosser served a further draft affidavit saying in particular that he had notcalled Mr. Khan from his land line because he had packed up the handset of that land line in preparation for his move.

On 18th November 2010, just prior to the last hearing, Winckworth Sherwood wrote reporting the allegedfraud to Barclays Bank's Victim of Fraud Department, to HSBC and to Standard Chartered Bank.

On 25th November 2010 Mr. Prosser again gave evidence. It was pointed out to him that still no report hadbeen actually made to the police. It was suggested to him that the reason he had not wanted to report matters to the police was that he knew he would be risking prosecution for wasting police time or possibly attempting to pervert the course of justice.

On 26th November 2010 Mr. Edwards filed a new affidavit. That was the second day of the hearing beforeme on that occasion. Mr. Edwards' affidavit, which was eventually sworn on 30th November, dealt with a number of matters including the following:

He then dealt with efforts to chase the money and reporting the matter to the banks and to the police,effectively taking blame for any dilatoriness in those activities.

At the end of the hearing on 26th November 2010 the parties applied for an adjournment to allow furtherdocuments to be obtained and to allow the police to investigate the report that had, by then, been made or was about to be made. The order that I made in response to the parties' consent included the following: first of all, a freezing injunction in relation to assets up to £450,000; secondly a requirement that by 4.00 p.m. on 5th December 2010 Mr. Prosser should disclose copies of all bank statements of every bank account that is or was at any time under his control for specified periods; thirdly, that Mr. Prosser should use his best endeavours to obtain and disclose by 4.00 p.m. on 17th December 2010 detailed records of all outgoing and ingoing calls on all telephones, whether land line or mobile, which were in any time in his possession or control for the relevant period; fourthly, that Mr. Prosser should file a complaint with the appropriate Metropolitan Police Authority by 30th November 2010 in relation to the alleged disappearance of £450,000 and that he should "use his best endeavours to pursue the complaint and ensure that the complaint is investigated with expedition, vigour and diligence by the Serious Organised Crime Agency and/or any other appropriate Police Authority, subject always to the relevant Agency or Authority deciding to do so" and that he should keep the claimant informed of progress and give the claimant authority to conduct his own investigations at his own expense.

In the course of the hearing I again made certain comments directed at Mr. Prosser as follows:

Then a little later in the hearing:

On 30th November 2010 Winckworth Sherwood wrote to Maddersons enclosing the proposed letter to besent to the police. I need not read out the terms of the letter itself, but it was Mr. Edwards's evidence that he and a representative from Maddersons sat together in his offices and made the report on the internet in the way it had previously been discussed between them. On 2nd December 2010 Maddersons wrote to Winckworth Sherwood giving them details of how to report matters to the police. On 7th December 2010 Winckworth's file note records a call from Barclays saying that there was nothing they could do to help and that Mr. Prosser had "willingly signed the transfers".

On 14th December 2010 Maddersons sent an e-mail to Mr. Edwards of Winckworth Sherwood setting out anumber of concerns at Mr. Prosser's compliance with the order that I made of 26th November 2010. On 15th December 2010 Mr. Edwards responded to those concerns. After Christmas on 10th January 2011

On 18th January 2011 Mr. Edwards sent some of the telephone records to Maddersons. On 27th January

Finally, on 28th March 2011, shortly before this hearing began yesterday, Mr. Edwards received an e-mailfrom Detective Inspector McCullough which said as follows:

Order 45 rule 5 of the Rules of the Supreme Court deals with "Enforcement of judgment to do or abstainfrom doing any act". It provides as follows:

a person required by a judgment or order to do an act within a time specified in the judgmentor order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under a court order or CPR rule 2.11 ; or

a person disobeys a judgment or order requiring him to abstain from doing an act, then,subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say -

Order 45 rule 7 provides under the heading "Service of copy of judgment etc., prerequisite to enforcementunder rule 5 " as follows:

a copy of the order has been served personally on the person required to do orabstain from doing the act in question; and

in the case of an order requiring a person to do an act, the copy has been soserved before the expiration of the time within which he was required to do the act.

An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either -

by being present when the order was made; or (b) by being notified of the termsof the order, whether by telephone, telegram or otherwise.

The court may dispense with service of a copy of an order under this rule if it thinks it just todo so."

The notes to RSC Order 45 rule 7 include the following:

Before dealing with the evidence that I have heard and the issues that I have set out, I should deal with thenature of this application and the burden and standard of proof. Mr. McIlroy submitted by reference to the case of R. v. Ayub Lashari [2010] EWCA Crim 1504 as follows:

The claimant had to prove the contempt to the criminal standard of proof.

That by analogy with the principles applied to a Newton hearing in criminal cases, where thecourt is deciding on the level of culpability of the contempt, the burden of proof remains on the claimant and the standard remains the criminal standard.

That extraneous matters of mitigation need only be proved by the defendant to the civilstandard.

These propositions were supported by a dictum of Lord Phillips MR in Gulf Azov Shipping Company Ltd. v.Chief Humphry Irikefe where the Master of the Rolls said at paragraph 16:

The submission is also supported by the dictum of Colman J in Z Bank v. D1 and Others [1994] 1 Lloyd'sRep. 656 at page 667 first column where he said:

I accept Mr. McIlroy's submissions and the dicta that I have cited which are of some importance on the factsof this case. First, the contempt itself, is the failure to give instructions to Ewart Price to place the proceeds of sale of the property on deposit with Maddersons. That much is admitted and therefore proved. Secondly, however, if I were to hold that a committal were a possible option - to which I shall come in a moment - I would have to decide what Mr. Prosser had done in relation to the contempt and what level of culpability attaches to his conduct. Four crucial questions would arise as follows:

Has it been proved that Mr. Prosser deliberately paid the money away?

Has it been proved that Mr. Prosser paid the money away in the full knowledge of the fact thatwhat he was doing was in breach of the court order?

Has it been proved that the story about Mr. Prosser being duped by Mr. Khan is a completefabrication?

Has it been proved that Mr. Prosser is still in control of the money so as to be able to purgehis contempt?

In my judgment these questions must all be proved to a criminal standard of proof if I am to take them intoaccount in relation to any sentence that I might impose. As to the questions of mitigation, like Mr. Prosser's health, age and infirmity, these matters need to be proved by Mr. Prosser only to a civil standard. Mr. Prosser's evidence

I have heard Mr. Prosser give evidence orally on three separate occasions. I should say that he strikes me asa very alert and savvy 81-year old. He is plainly not in particularly good health but seems to bear his medical problems with fortitude. I should start by saying what those problems are. They have been listed in a report from the Anglesey Medical Centre as follows:

Type 2 Diabetes Mellitus;

Atrial fibrillation;

Ischemic Heart Disease;

Gout;

Diabetic Neuropathy;

Impaired Left Ventricular Function;

Peripheral Vascular Disease NOS;

Intermittent Claudication. "

In addition to these items, information has been put before me to indicate that he suffers also fromdiverticular disease and has recently undergone a cataract operation. It is plain that the diverticular disease in particular is incapacitating in that there is evidence that he experiences urinary leakage and faecal soiling if he is unable to relief himself quickly on any particular occasion. I have already cited from Mr. Prosser's own assessment of his medical condition in his first draft statement that was placed before the court.

I now turn to my view of Mr. Prosser's evidence. Mr. Prosser has admitted a most serious lie to his solicitorwhich goes to the heart of this application, so I cannot say that I regard him as either as a truthful person or a truthful witness. In answering questions he was often evasive and unhelpful. Whilst I would be reluctant to rely on much of what he said without corroboration, I remind myself that one should not assume that because a witness has been dishonest in one respect that he is dishonest in all that he says: life is more complex than that.

There were striking examples, however, of Mr. Prosser's untruthfulness in evidence, for example, where heanswered two questions by saying that Mr. Barham had not financed his legal expenses before admitting that he had when I intervened. I did not accept Mr. Prosser's attempts to excuse his conduct by saying that he thought, when he was told by the solicitors undertaking the conveyancing that the sale could go ahead, that everything was OK and the freezing injunction had been sorted out. I did not accept his evidence that he was confused or did not know what he was doing in relation to the steps he took in relation to the proceeds of sale. The steps that he personally took to speed the money to Hong Kong and the lie that he told his solicitor persuade me that Mr. Prosser knew exactly what he was doing. It is perhaps sufficient to cite just three lines

The fact of the matter is that Mr. Prosser deliberately delayed telling Mr. Edwards that he had completed thesale and disposed of the money which he knew full well he was not permitted to do under the terms of the freezing injunction with which Mr. Edwards was dealing on his behalf. I heard evidence also from Mr. Edwards much of which I accepted although not in every respect. Mr. Edwards took an indulgent view of his client, as he was entitled to do as his solicitor, and was keen to offer explanations for his conduct in mitigation, at least, of what had occurred.

In the result, however, I found great assistance from Mr. Edward's careful file notes which did not in anyway seek to conceal the position and were, if I may say so, commendable examples of their kind. It would be quite wrong for Mr. Edwards to suggest that he was incompetent as he tried to do in order to excuse his client. I have seen no evidence of any such incompetence and it seems to me that Mr. Edwards has represented his client carefully and competently throughout.

I do not accept Mr. Prosser's explanation that there is any relevance in the fact that he sold the propertybecause he did not wish to let down the 91-year old man who wished to move into it. That may well be the reason why he was keen to go ahead with the sale, but it has no relevance whatsoever to how he dealt with the proceeds.

It seems to me that the explanation for Mr. Prosser's conduct is really quite clear. Put bluntly, he could notbelieve his luck when his solicitor called to say that he could have the proceeds of sale and at that point, or very shortly thereafter, he resolved to get the money offshore and out of the reach of his brother at the greatest possible speed. Mr. Prosser is not a sophisticated man in matters of finance but he has run a business for much of his life. I am quite sure that he needed help to get the money out of the country and I am sure that he received it. It is mostly likely on the exiguous evidence that I have heard that he received that help from Mr. Barham rather than from Mr. Khan. But precisely what happened is not clear at all. I shall return to this question when I come to deal with the issues in due course.

I turn now to deal with the legal questions that have been raised by Mr. McIlroy on Mr. Prosser's behalf.

It had been suggested by Mr. Guy Tritton that a Consent Order , like an undertaking, did not need to beserved before it was enforced. The authority for the proposition that an undertaking does not need to be served prior to being enforced is contained in the well-known case of Hussain v. Hussain [1986] Fam 134 where Sir John Donaldson, MR explained why it is that when a person gives an undertaking to the court, rather than submits to an order, it is not necessary for that undertaking to be served upon him before enforcement proceedings can be taken. I do not need to read in detail from Hussain v. Hussain but the passages of Sir John Donaldson MR's judgment at page 140 repay consideration.

It is now conceded that a Consent Order is different from an undertaking and it is also conceded that aConsent Order does need to be served in accordance with the rules in order to be enforced. But Mr. Tritton still submits that the true distinction is between something that is volunteered and something that is imposed and that I should therefore take this into account when deciding whether to waive the strict requirements of Order 45 rule 7 . That said, there is no authority to the effect that a Consent Order can be enforced without regard to the provisions of Order 45 and I am entirely satisfied that Order 45 applies to Consent Orders of the kind in issue in this case. I do accept, however, as Mr. Tritton has submitted, that the question of whether the discretion should be exercised under Order 45 rule7(7) may be affected by the fact that there is a Consent Order rather than an order which was made without agreement.

It has been suggested in many cases over the years that the court does not have the power to dispense withthe strict requirements of Order 45 rule 7 in cases where the order is mandatory as opposed to negative.

Blair J has recently reviewed the authorities in a careful judgment in the case of Munib Masri v.

Since the court has power to dispense with service of the order, it has power to proceed toconsider a proper notice of application to commit notwithstanding the absence of a penal notice ( Jolly v Hull [2002] 2 FLR 69, CA , at p. 75C, Judge LJ, Knowlden v Tehrani [2008] EWHC 3636 at [13], Lewison J).

The modern approach is that such discretion must be exercised in a way which in all thecircumstances best reflects the requirements of justice ( Nicholls v Nicholls [1997] 1 WRL 314 at 326, Lord Woolf MR, Bell v Tuohy [2002] 1 WLR 2703 at [47], Neuberger J). This is reflected in paragraph 10 of the Practice Direction to RSC O.52, by which 'the Court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect'.

In principle however the jurisdiction should not be exercised too readily, lest what shouldbe a dispensing power for use in exceptional cases may gradually undermine the express requirements of the rule" ( Jolly v Hull , ibid, p.75D, Judge LJ).

In the case of Gill v. Darroch (to which I have already referred and which is mentioned in the CPR ) I had todeal with the question of whether the court could dispense with the requirement to put a penal notice on the front page of an order where the order was a positive not a negative one. I too held that such jurisdiction existed having reviewed the authorities which were extensively cited to me. The case of Benson v. Richards [2002] EWCA Civ 1402 was not cited to me in Gill but it reinforces what I held and adds much to the debate. I cite paragraphs 40 to 41 from the judgment of the court delivered by Carnwath LJ as follows:

In my judgment there is power to dispense with service of this order and to make an order for committalnotwithstanding the fact that the order was not served with a penal notice endorsed on its face. I shall turn, in due course, to consider whether it is just to waive the requirements in line with the authorities that I have cited.

Section 4 of the Debtors Act 1869 provides as follows:

It is now common ground that the proviso limiting imprisonment to one year would not apply here since noneof the six exceptions apply in this case (as is also common ground). In the circumstances, therefore, the only question that was argued before me and which I have to decide is whether the first sentence of section 4 prevents Mr. Prosser being committed for his breach of the 10th March order.

There are three primary authorities to which I have been referred which bear upon this question. First, inBates v. Bates [1888] 14 Probate Division 17 the Court of Appeal held in a wife's petition for judicial separation where the husband was ordered to pay a sum of money into court as security for her costs that the order was not "default in payment of a sum of money within section 4 of the Debtors Act and that the husband was therefore liable to attachment for disobeying the order of the court". It will be noted in passing that the remedy of attachment has now been abolished and committal is the only option these days. Cotton LJ gave the leading judgment of the court and it is important to understand what precisely he was deciding to set out his judgment at a little length. It can be seen, however, from the first part of the report that the order that had been made by Butt J was that the husband should

Lindley LJ gave a short judgment as follows:

There has been much debate in argument as to whether Cotton LJ and Lindley LJ were actually in agreementor not. It seems to me that they were pretty well in agreement notwithstanding a dictum in the later case of Graham v. Graham [1992] 2FLR 406 from Purchas LJ indicating that the reasons they gave were rather different for their decision. But whether or not they agreed does not seem to matter to me in this case since the order that was made here was not an order for the payment of money into court, it was not an order for the payment of money to the claimant, it was an order that the defendant should give instructions to his solicitors to pay the proceeds of sale into what was effectively an escrow account in the name of the claimant's solicitors. Effectively the defendant was being ordered to give security for the claim by giving those instructions to his solicitors just as the husband in Bates v. Bates was being ordered to give security either by the payment of a sum of money or by the putting up of a bond.

Mr. McIlroy, however, has relied upon the case of Farrant v. Farrant [1957] P 188 as demonstrating that whatI have just said is not justified. In Farrant v. Farrant which was a case at first instance before Sachs J (as he then was) the learned judge had to consider whether a husband who had been ordered to pay school fees could be committed in the light of section 4 . The judge said this at pages 190 to 191:

It does not seem to me that anything said by Sachs J is doubting or indeed distinguishing the decision of theCourt of Appeal in Bates v. Bates nor, since it did relate directly to the payment of the sum, does it have any bearing on the matters which I have to decide.

The third and final case to which I should refer is Graham v. Graham [1992] 2 FLR 406 which was again amatrimonial case which, as Mr. McIlroy points out, concerned section 5 of the Debtors Act 1869 rather than section 4 of the Debtors Act 1869 . Purchas LJ in the Court of Appeal did, however, deal with section 4 of the Debtors Act in an admittedly obiter section of his judgment. I do not propose to set out the judgment at pages 414 to 415 in detail. What Purchas LJ did, however, was to set out parts of Cotton LJ's judgment (which I have already cited) and Lindley LJ's judgment and said this about them as follows:

He continued at page 413E by saying that if he were forced to choose between the reasoning of the LordsJustices he would prefer the reasoning of Lindley LJ and would have been prepared to base his judgment on the proposition that to order a litigant to bring money into court as security for the future determination of the liability to pay is not an order for the payment of a sum of money falling within section 4 of the Debtors Act

It seems to me that in reality, as I have said, there was probably very little between the two Lords Justices inBates v. Bates . Both of them were saying in effect that where there is an order for the payment of money or the giving of security, but not the payment of an ordinary debt and not the payment of money directly to the claimant, then section 4 of the Debtors Act is not engaged. As it seems to me, that is the ratio of Bates v. Bates which I must follow and nothing that Purchas LJ says in Graham v. Graham casts any doubt whatever upon it.

For the reasons then that I have shortly tried to give, I hold that section 4 of the Debtors Act does not applyto the order that was made in this case. In addition, the proviso to section 4 does not apply. This was an order to give instructions to solicitors to place money in a deposit account when they arose by way of proceeds of sale from the sale of the property and the Debtors Act has no application and any breach of the order can, as a matter of law, be enforced, in my judgment, by committal.

I need now to consider whether to exercise my discretion bearing in mind the strictures in the authorities thatI have referred to and the gravity of the proceedings in which I am engaged, to dispense with service and with the need for a penal notice endorsed on the face of the order. There is no doubt that at the time of the contempt, that is at the time of the breach of the order, Mr. Prosser had not been served with a copy of the order endorsed with a penal notice. Indeed, the only order that had been served had been served on his solicitors and had been served without any penal notice at all in any part of the order. Only after the contempt had happened was he personally served with a copy of the order endorsed with the penal notice as I have already indicated. That, of course, was too late for compliance with Order 45 rule 7 and leads therefore to the need for me to consider the exercise of my discretion to dispense with service.

In my judgment the court should have regard to the realities of this case. There are, of course, somesimilarities between an undertaking and a Consent Order but what needs to be considered, first and foremost, in a case of this kind, is whether the defendant understood the order and understood what he should and should not do thereunder and whether its terms and effects were properly brought to his attention so that he knew that if he failed to comply with it, he would be defying the order of the court and liable to some penalty in that regard. It would only be just to dispense with service and to dispense with the requirement for a penal notice if the evidence of that knowledge was very clear. As has been made clear in a number of authorities, these requirements are made for a good purpose: because it is desirable that orders should always be served on a person who is required to do something under an order or required to abstain from doing something under an order and it is extremely important that the consequences of non-compliance should be drawn specifically to their attention.

I have, however, already held that Mr. Prosser was fully aware of the terms of the order. That is clear fromMr. Edwards' file note of 15th March 2010. I do not accept Mr. Edwards' latterly expressed concern that he may have given Mr. Prosser the impression that the order simply prevented a sale rather than provided for the proceeds of sale to go into Maddersons' account. Put shortly, in my judgment, Mr. Prosser was not confused. Mr. Prosser was fully aware of what was going on and he knew very well that he was obliged by this order to pay the proceeds of sale of the property into an account with Maddersons. He could not, as I have said before, in my judgment, believe his luck when he received a phone call from the assistant at Ewart Price who said that he could have the money.

In this situation, therefore, was he entitled nonetheless to have the order endorsed with a penal notice servedupon him personally before contempt proceedings are brought? Mr. Edwards rightly said that he would have taken Mr. Prosser through the consequences of breach had there been a penal notice and he did not do so. But I have no doubt that Mr. Prosser understood that breaching the order was a serious matter. He took the trouble to lie to his own solicitor about what he was doing and he took the trouble hurriedly to dispatch money overseas which he told me was something he had never - in 81 years - done before. The question here, therefore, is not so much about dispensation of service (because it was a Consent Order of which Mr. Prosser was fully aware as I have held and as he accepts) but whether the service of the order with a penal notice should be dispensed with?

I have had some hesitation about this and I have recently reviewed the extensive authorities to which I wasreferred in Gill v. Darroch . Ultimately, however, I have reached the conclusion that it is just and appropriate to dispense with service of the order in the circumstances of this case. It is right to dispense with service of the order and right to dispense with the need for the endorsement of a penal notice. I have already effectively given the reasons. This was a Consent Order . Mr. Prosser had it explained to him in full detail. Mr. Prosser fully understood it and he was not sufficiently naïve and did not even suggest that he thought that he could flout such an order with impunity or that a breach of the order would not have very serious consequences indeed. None of his evidence was directed to that aspect of the matter and I do not believe that he could have truthfully said anything to that effect.

In the result, although this is no part of my reasoning as to the requirements of Order 45 rule 7 , Mr. Prosserhas, as I have already indicated, deliberately flouted the order in circumstances to which I shall come in a moment. It seems to me, though, having considered and weighed up the justice of the case, that it is appropriate to waive the strict requirements for service in the unusual circumstances of Mr. Prosser's case and I do so.

It is clear from what I have said that Mr. Prosser has been guilty of a serious contempt of court. I find thatcontempt proved beyond reasonable doubt. He deliberately failed to give Ewart Price instructions to place the proceeds of sale of the property in the client account as he had agreed to do in agreeing to the 10th March Consent Order .

This, of course, is now a very important issue. I have to consider the four questions that I have set out earlierand to which I shall come in a moment. My consideration of these questions turns, to a large extent, on my assessment of Mr. Prosser's evidence about which I have already given an introduction. It seems to me that it is proved beyond reasonable doubt that Mr. Prosser knew precisely what he was doing, that he knew he was breaching the court order and intended in sending the money overseas to defeat his brother's claims if he possibly could. But that is not the end of the matter. I have then to consider whether Mr. Prosser could now get the money back.

Mr. Tritton has submitted that Mr. Prosser has put forward a false story and pinned his colours to the mast ofthat false story and because it is now proved that no phone call was made to Mr. Khan on the number 0208 407, I should not speculate on the events that may have happened. But it seems to me that this submission cannot be conclusive. It is true that there was no phone call to Mr. Khan. It is therefore true that there are some parts of the story about Mr. Khan which are proved beyond reasonable doubt to be false. But it does

In the end, what precisely happened does not matter for the purposes of this hearing. I am quite sure that Mr.Prosser did what he did deliberately. He sent the money away to frustrate his brother's claims. I cannot say whether he can now get it back. He may be able to, but I have given him two adjournment opportunities over some months and made it very clear that he should purge his contempt if he could and he has not done so. This affects the way in which I should approach sentencing.

I should just say this about Mr. Tritton's submissions that Mr. Prosser may be the kind of man who regards itas worthwhile to serve a prison sentence in order to get away with £450,000, a very large sum of money, and in effect his entire life savings. It is impossible for me to form a view about that. What I have to focus on is the four questions which I dealt with earlier. I will deal with those each in turn.

As regards the first I find that it has been proved that Mr. Prosser deliberately paid the money away. I am notin any way persuaded, as I have said, that he was confused or did not know what he was doing or misled by either of his solicitors' firms.

I find also that it has been proved that Mr. Prosser paid the money away in the full knowledge of the fact thatwhat he was doing was in breach of the court order. Again, I am entirely satisfied that Mr. Edwards competently and appropriately explained the court order to him in the way that his file note establishes beyond any reasonable doubt.

As to the third and fourth questions, however, it seems to me that I am forced to conclude that it has not beenproved beyond reasonable doubt that the story about Mr. Prosser being duped by Mr. Khan is a complete fabrication. Likewise, it has not been proved beyond reasonable doubt that Mr. Prosser is still in control of the money so as to be able to purge his contempt.

I should elaborate a little on these findings. I find the whole story about Mr. Khan and "Karney" to beincredible and surprising, but I do not think that Mr. Prosser could have put the money offshore without help and I cannot discount the possibility that whoever helped him has now in fact duped him. Moreover, I strongly suspect that Mr. Barham was involved. There was evidence that Mr. Barham has spent some time in prison, possibly for robbery. He is clearly close to Mr. Prosser and Mr. Edwards told me that he has underwritten his legal fees in this case or at least on this application. There was clear evidence that Mr. Prosser and Mr. Barham were in close telephonic contact at the relevant time. It seems to me that Mr. Barham may have underwritten the legal fees because he feels guilty about having got Mr. Prosser into something as serious as this contempt. But I do not know any of this; I only suspect it. What I know is that Mr. Prosser has not told the truth. The story about Mr. Khan is either incomplete or wholly fabricated, but I cannot with certainty say which.

I have already taken into account in reaching these findings all the matters already stated including theabsence of a call to Mr. Khan from any of Mr. Prosser's phones on the dates alleged; the police's finding that there was no crime; the reluctance to report the matter to the police or the banks; and the opportunities that I have given to Mr. Prosser to purge his contempt. But with all that, I cannot say beyond reasonable doubt that Mr. Prosser still has the ability to get this money back. He may very well have that ability but equally he may not. I am left in doubt and I shall consider the appropriate penalty allowing Mr. Prosser the benefit of that doubt.

The Court of Appeal in Hale v. Tanner [2000] 1 WLR 2377 identified two objectives in sentencing forcontempt: first, to mark the court's disapproval of the disobedience to its order; and, secondly, to secure compliance with that order in the future. The appellant in that case breached a non molestation order against his former cohabitee. He was given a six months' suspended sentence. The Court of Appeal allowed the appeal and substituted a sentence of 28 days. Hale LJ (as she then was) said the following at page 2380:

In making those points I would wish to emphasise that I do so only in the context of familycases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.

Having said that, firstly, these cases have to come before the court on an application tocommit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe [1998] 2 FLR 127 , a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion.

Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited.The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non-attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved.

Thirdly, if imprisonment is appropriate, the length of the committal should be decidedwithout reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension.

Fourthly, the length of the committal has to depend upon the court's objectives. There are twoobjectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity.

Fifthly, the length of the committal has to bear some reasonable relationship to the maximumof two years which is available.

Sixthly, suspension is possible in a much wider range of circumstances than it is in criminalcases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court's order.

Seventhly, the length of the suspension requires separate consideration, although it is oftenappropriate for it to be linked to continued compliance with the order underlying the committal."

Whilst Hale LJ did say that her guidance was only to be applied in Family cases, it seems to me that some ofit is applicable by analogy in a case of this kind as is made clear by the other authorities to which I now refer. In Crystal Mews v. Metterick [2006] EWHC 3087 (Ch) Lawrence Collins J (as he then was) set out seven factors to be taken into account. The defendant breached a freezing order which was limited to £200 million. He, along with his wife, also breached a separate freezing order limited to £600,000. The husband was committed for eight weeks, his wife was also committed for eight weeks but her sentence was suspended provided she reimbursed money into her account and made regular monthly payments. Lawrence Collins J said this:

He then held that the breaches of the freezing orders by both defendants were deliberate and in theknowledge of both orders although the money had gone to finance a property which no doubt could have been recovered.

The other cases to which I have been referred include the case of In re Barrell Enterprises [1972] 1 WLR 19 where the appellant failed to hand over certain documents in breach of a disclosure order. Brightman J declined to release her after she had served five months of her sentence. The Court of Appeal allowed the appeal saying:

In Pospischal v. Phillips The Times 20th January 1988 , the appellant had sold and dissipated assets inflagrant defiance of a Mareva injunction. At first instance he was committed to prison for 10 weeks and the Court of Appeal substituted a sentence of six weeks' imprisonment.

We see in the case of Hudson v. Hudson the rationale for that decision. I shall come to that case in amoment. Pospischal was the first case that I have referred to after the enactment of the Contempt of Court Act 1981 which imposed a maximum term of two years' imprisonment for a civil contempt of court. In Lightfoot v. Lightfoot [1989] 1 FLR 414 , a case upon which Mr. Tritton placed particular reliance, the husband disobeyed an order to pay money into a joint bank account. He had received £30,000 which he did not pay into the joint account but instead withdrew most of it and said that he had gambled it away. He was committed to prison for 18 months. The Court of Appeal dismissed the appeal and Sir John Donaldson MR at page 416 said this:

In Hudson v. Hudson [1995] 2 FLR 72 the husband dissipated £20,000 in breach of an injunction backed by apenal notice that he must not dispose of any part of the severance payment. At first instance the husband was committed to prison for nine months, the judge having found that this was about as bad a case of contempt as one could imagine. The judge found the husband was hoping to get away with it. The judge was not satisfied with his account of where the money had gone. The Court of Appeal dismissed the appeal on the grounds that, per Ward LJ at page 76:

It can be seen from these cases that the very short sentences tend to be meted out in cases where there hasbeen a breach but it is within the power of the defendant to rectify that breach either by the payment of money or by purging his contempt.

I should next refer to the case of Ricardo Fontes which deals with the question of poor health. It is reportedat [2005] EWCA Crim 2103. There a 75-year old man in poor health was sentenced to 7½ years' imprisonment for importing cocaine. The Court of Appeal allowed the appeal and substituted a sentence of five years. Nelson J said at page 404:

In ABC v. CDE [2010] EWCA Civ 533 the appellant committed five breaches of a freezing order preventinghim from disposing of any of his assets up to a value of $4 million and in particular of selling a property in Latvia. At first instance he was given a sentence of 12 months' imprisonment suspended until the conclusion of the substantive proceedings. The Court of Appeal allowed the appeal but only to the extent that it substituted more precise and more complex terms of the suspension.

In Lexi Holdings v. Luqman [2010] EWCA Civ 1116 the appellant had committed a number of seriouscontempts including a breach of a freezing order, disclosure order and passport order. Briggs J in this Division sentenced the appellant to an effective 18 months', six months of which for the breach of the passport order. Stanley Burnton LJ in the Court of Appeal described the judge's judgment as "a careful judgment" and said that he had taken account of all relevant matters and that the court would not interfere with the sentence.

I turn, then, to deal with the sentence that is appropriate in this case. There is no doubt that this was a veryserious contempt indeed, done as it was deliberately with the intention of taking the money away from his brother's grasp. Indeed, Mr. Prosser may have been successful in that respect. If so, this may be the last effective opportunity to punish the defendant for his breach. As I indicated at the last hearing, Mr. Prosser may in effect have frustrated this action and left his brother with no sensible commercial prospect of pursuing his claims. That said, the purpose of this sentence cannot now be to persuade Mr. Prosser to purge his contempt. I am not satisfied and I have not found it proved as Mr. Prosser's ability to get the money back. It may be that Mr. Prosser cannot get the money back, in which case there would be no purpose in imposing a sentence designed to persuade him to purge his contempt. I therefore put that aspect of the matter out of my mind and have arrived at a sentence based upon the marking of the serious nature of the contempt, the marking of the displeasure of the court at the serious nature of the offence that Mr. Prosser has committed but without taking into account that he may be able to purge his contempt and bring the money back into the jurisdiction.

I take into account in fixing a penalty that the order was not served with a penal notice until after thecontempt. But since I am in no doubt that the defendant was fully aware of the need to comply with the order and that he was deliberately spiriting the money away in defiance of what he had consented to, this does not much reduce the penalty in my judgment. When I adjourned the matter on 26th November 2010 I said that whether or not Mr. Prosser had been duped was relevant to penalty. I take it seriously into account but I have not found it proved that his being duped was a complete fabrication.

I have considered carefully, first, what sentence I would have arrived at had Mr. Prosser been a healthy andyounger man and not affected by the infirmity which I have described and by his age. Had he been fit and healthy and neither elderly nor infirm, I would have thought that this was a serious contempt but not as serious as if I had been able to hold beyond reasonable doubt that he could have brought the money back and has wilfully failed to purge his contempt. Since I am uncertain about that, it would not be appropriate to impose on a healthy man a sentence at the top end of the available power of two years. Had Mr. Prosser been fit and healthy then I would have imposed a sentence of 10 months.

I have to consider what affect his age and infirmity should have. I take into account specifically the dictumof Nelson J to which I have referred in relation to the effect of his age. I take into account that Mr. Prosser will be more seriously affected by a term of immediate imprisonment than a younger man would be. He does indeed have a number of disorders but many of them are disorders that elderly men commonly suffer from. He is not very mobile but he is able to walk with a stick at a reasonable pace. He does suffer from a measure of incontinence although I am not satisfied that that incontinence prevents me imposing a prison sentence.

I do, however, think that the prison sentence of 10 months that I would otherwise have imposed should besubstantially reduced taking into account his age. Nonetheless, the court must still mark the gravity of the contempt in this case and it seems to me that I should impose a sentence of immediate imprisonment of five months. I have considered whether there could be any suspension of that order so as to allow him to purge his contempt but, in the circumstances that I have described, that would serve no useful purpose.

In the circumstances, therefore, I will order that Mr. Richard Prosser be committed to prison for five months.